{"id":39219,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-healtheon-webmd-corp-and-john-l.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-healtheon-webmd-corp-and-john-l","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-healtheon-webmd-corp-and-john-l.html","title":{"rendered":"Employment Agreement &#8211; Healtheon\/WebMD Corp. and John L. Westermann III"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n         THIS EMPLOYMENT AGREEMENT (this \"Agreement\") is made and entered into\nthis 8th day of September 2000 (\"Effective Date:\") by and between\nHealtheon\/WebMD Corporation, a Delaware corporation (the \"Company\"), and John L.\nWestermann III (\"Westermann\"), Social Security Number [redacted], to be\neffective immediately upon execution.\n\n         THEREFORE, in consideration of the payments, covenants and releases\ndescribed below, and in consideration of other good and valuable consideration,\nthe receipt and sufficiency of which is hereby acknowledged, the Company and\nWestermann agree as follows:\n\n         1.       Continued Employment. Westermann will continue to be employed\nin the position of Chief Financial Officer of the Company or in a position of\nequivalent title, unless and until such relationship is terminated pursuant to\nthe provisions of paragraph 3 of this Agreement.\n\n         2.       Compensation.\n\n                  2.1   Base Salary.  Westermann will continue to be compensated\nat an annualized base salary of $200,000, payable in accordance with the normal\npayroll practices of the Company, less all authorized deductions for state and\nfederal withholdings. In the event either party terminates Westermann's\nemployment under this Agreement, for any reason, Westermann will earn the\nprorated portion of his salary to the date of termination.\n\n                  2.2   Customary Fringe Benefits.  Westermann will continue to\nbe eligible for all customary and usual fringe benefits generally available to\nthe executives of the Company subject to the terms and conditions of the\nCompany's benefit plan documents.\n\n                  2.3   Business Expenses.  Westermann will continue to be \nreimbursed for all reasonable, out-of-pocket business expenses incurred in the\nperformance of Westermann's duties on behalf of the Company.\n\n                  2.4   Stock Options.  As of the date hereof, Westermann holds\nstock options to acquire 320,000 shares of the Company's common stock (the\n\"Options\"); as follows: (i) an option granted on July 8, 1998 to acquire 200,000\nshares at $4.50 per share (the \"1998 Option\"); (ii) an option granted on\nFebruary 3, 1999 to acquire 20,000 shares at $5.85 per share (the \"1999\nOption\"); and (iii) an option granted on April 6, 2000 to acquire 100,000 shares\nat $21.6875 per share (the \"2000 Option\"). Each of the Options normally vests as\nto 25% of the shares on the first anniversary of the date of the grant and in\nequal monthly installments thereafter. The 2000 Option is hereby amended as of\nthe Effective Date to provide that 25,000 shares will vest and become fully\nexercisable on the earlier to occur of the Effective Date and shall remain\nexercisable as to such 25,000 shares for the remainder of its original ten-year\nterm. The remaining 75,000 shares of the 2000 Option will vest in accordance\nwith the terms set forth in the documents creating such option. The 1998 Option\nand the 1999 Option are hereby amended as of the Effective Date to provide that\nthey will become fully vested and exercisable as of the Effective Date and will\nremain exercisable for the remainder of their respective ten-year terms.\n\n\n&gt;PAGE&gt;   2\n\n                  2.5      Restricted Stock. As of the date hereof, Westermann\nholds 380,282 shares (the \"Purchased Shares\") that he purchased pursuant to that\ncertain Restricted Stock Purchase Agreement, dated as of October 20, 1998 (the\n\"Restricted Stock Purchase Agreement\"). As of the Effective Date, the Company\nhereby waives its rights under the Restricted Stock Purchase Agreement to\nrepurchase any of the Purchased Shares from Westermann and such repurchase\nprovisions are null and void. Said Purchased Shares shall be held by Westermann\nfree and clear of any claims of the Company under the Restricted Stock Purchase\nAgreement as of the Effective Date. Upon execution of this Agreement, Company\nagrees to IMMEDIATELY send the certificate(s) for the Purchased Shares to\nAmerican Stock Transfer &amp; Trust Company, Attn: Mr. Joe Comito, 40 Wall Street,\n46h Floor, New York, NY 10005 with irrevocable instructions to IMMEDIATELY (a)\ncancel such certificate(s), (b) reissue a certificate of even date herewith for\nsuch shares in the name of John L. Westermann III with any and all legends\nremoved except the legend referring to the Securities Act of 1933, as amended,\nand (c) to transmit such reissued certificate to Goldman Sachs &amp; Co., Attn:\nMichael Russ, 100 Crescent Court, Suite 1000, Dallas, Texas 75201 for deposit to\nthe account of John L. Westermann III, Investment Account #2-012-07789-7-191.\nImmediately upon execution of this Agreement, the Company further agrees to use\nits best efforts to ensure any and all necessary actions to comply with the\nintent of foregoing sentence are taken as soon as possible.\n\n         3. Termination of Westermann's Employment. Either party, with or\nwithout cause can terminate Westermann's employment with Company at any time\nafter the Effective Date of this Agreement by written notice delivered ten days\nprior to the effective date of such termination. The Company's sole and\nexclusive remedy for any failure or alleged failure by Westermann to perform his\nduties as Chief Financial Officer shall be the termination of Westermann's\nemployment pursuant to the provisions of this Agreement. For the avoidance of\ndoubt, Westermann shall be entitled to retain and exercise the Options as\ndescribed in Section 2.4, to retain the Purchased Shares described in Section\n2.5, and to receive the payments and benefits described in Sections 4, 5 and 6\nregardless of the circumstances of his termination.\n\n         4. Payments upon Termination by Company. Payment of any accrued but\nunpaid salary will be made by the Company upon Westermann's last day of\nemployment, as will payment of any accrued but unused vacation. The Company\nshall reimburse Westermann promptly for business expenses incurred in the course\nof his employment with Company and submitted within sixty (60) days of his\ntermination.\n\n         5. Welfare Benefits Coverage. For an eighteen (18) month period after\nthe termination of Westermann's employment the Company, at its expense, shall\ncontinue benefits to Westermann and\/or his family at least equal to those which\nwould have been provided to him in accordance with the welfare plans, programs,\npractices and policies of the Company in which Westermann was participating\nimmediately prior to his termination; provided, however, that if Westermann\nbecomes re-employed with another employer and is eligible to receive medical or\nother welfare benefits under another employer-provided plan, the medical and\nother welfare benefits described herein shall be secondary and supplemental to\nthose provided under such other plan during such applicable period of\neligibility. Such 18-month period shall be co-extensive\n\n\n                                       2\n&gt;PAGE&gt;   3\n\n\nwith the period for which COBRA rights are available to Westermann following the\ntermination of his employment.\n\n         6.       Vested Benefits. Upon termination, Westermann shall be\nentitled to any vested benefits he may have under the employee benefits plans of\nthe company as are applicable to him at the time of termination. Such benefits\nwill be in accordance with and subject to the applicable terms and conditions of\nsuch plans or agreements.\n\n         7.       Acknowledgement of Tax Status. The parties hereto acknowledge\nand agree that the payments and benefits described above may be taxable income,\nand each hereby covenants to comply with all federal and state income and\nemployment tax requirements, including all reporting and withholding\nrequirements, relating thereto. Westermann further acknowledges that the\npayments and benefits described above are in exchange for his signing this\nAgreement.\n\n         8.       Mutual Release of All Claims and Potential Claims and Covenant\nNot To Sue. In consideration for the mutual promises and representations made\nherein the parties to this Agreement unconditionally, irrevocably and absolutely\nrelease and discharge each other from all claims related in any way to the\ntransactions or occurrences between them to date, to the fullest extent\npermitted by law. As to the Company, this release extends to all its successors,\nsubsidiaries, parent corporations, members, managers, owners, partners, lenders,\nadvisors, assigns, affiliated companies, agents, legal representatives,\nattorneys, employees, officers, trustees and directors, collectively the\n\"Releasees\". This release is intended to include all claims, liabilities,\ncontracts, contractual obligations, attorneys' fees, demands and causes of\naction, whether known or unknown, fixed or contingent, that the parties may have\nor claim to have against each other for any reason as of the date of execution\nof this Agreement. The parties further AGREE NOT TO FILE A LAWSUIT or other\nlegal or administrative claim or charge to assert any claim against any of the\nReleasees. This Release and Covenant Not To Sue includes, but is not limited to,\nclaims for infliction of emotional distress, claims for defamation, claims for\npersonal injury of any kind, claims for breach of contract, claims for\nharassment, claims for attorneys' fees, claims arising under federal, state or\nlocal laws prohibiting employment discrimination and claims growing out of any\nlegal restrictions on the Company's rights to terminate its employees or to take\nany other employment action, whether statutory, contractual or arising under\ncommon law or case law. Westermann specifically acknowledges and agrees that he\nis releasing, in addition to all other claims, any and all rights under federal\nand state employment laws including without limitation the Age Discrimination in\nEmployment Act of 1967 (\"ADEA\"), as amended, 29 U.S.C. ss. 621, et seq., the\nCivil Rights Act of 1964 (\"Title VII\"), as amended (including amendments made\nthrough the Civil Rights Act of 1991), 42 U.S.C. ss. 2000e, et seq., 42 U.S.C.\nss. 1981, as amended, the Americans With Disabilities Act (\"ADA\"), as amended,\n42 U.S.C. ss. 12101, et seq., the Rehabilitation Act of 1973, as amended, 29\nU.S.C. ss. 701, et seq., the Employee Retirement Income Security Act of 1974\n(\"ERISA\"), as amended, 29 U.S.C. ss. 301, et seq., the Worker Adjustment and\nRetraining Notification Act, 29 U.S.C. ss. 2101, et seq., the Family and Medical\nLeave Act of 1993 (\"FMLA\"), as amended, 29 U.S.C. ss. 2601 et seq., the Fair\nLabor Standards Act (\"FLSA\"), as amended, 29 U.S.C. ss. 201 et seq. the Employee\nPolygraph Protection Act of 1988, 29 U.S.C. ss. 2001, et seq., and all similar\nGeorgia and Texas statutory employment provisions.\n\n         9.       Mutual Non-Disparagement. The parties agree that during\nWestermann's employment and after any termination of employment, they will not\nmake any voluntary \n\n\n                                       3\n\n&gt;PAGE&gt;   4\n\nstatements, written or verbal, that defames the personal and\/or business\nreputation of the parties to this Agreement or the Released Parties.\n\n         10.      Nondisclosure. As used in this Agreement, the term\n\"Confidential Information\" shall mean all information regarding the Company, the\nCompany's activities, the Company's business or the Company's customers that is\nnot generally known to persons not employed by the Company but that does not\nrise to the level of a Trade Secret and that is not generally disclosed by the\nCompany practice or authority to persons not employed by the Company and is the\nsubject of reasonable efforts to protect its confidentiality. \"Trade Secrets\"\nshall mean information defined as a trade secret by the Georgia Trade Secrets\nAct. \"Confidential Information\" shall not include information that has become\ngenerally available to the public by the act of one who has the right to\ndisclose such information without violating any right or privilege of the\nCompany. Except (a) within the scope of the attorney-client privilege, (b) as is\nnecessary to their respective tax attorneys and accountants for the purposes of\ntaking tax positions and preparing tax returns, (c) to the extent required in\nresponse to a subpoena duly issued by a court of law, an arbitrator, a tax\ninvestigation or a government agency having jurisdiction or power to compel such\ndisclosure and (d) to the extent required to comply with federal or state\nsecurities laws, for two (2) years following any termination of Westermann,\nWestermann shall not directly or indirectly transmit or disclose any\nConfidential Information or Trade Secrets to any person, concern or entity, or\nmake use of any such Confidential Information or Trade Secret, directly or\nindirectly, without the prior written consent of the Company; provided, however,\nthat Trade Secrets shall not lose protection at the end of the above-described\ntwo (2) year period but shall remain protected for so long as they remain Trade\nSecrets.\n\n         11.      Acknowledgment. The Company hereby advises Westermann to\nconsult with an attorney prior to executing this Agreement. Westermann expressly\nacknowledges and agrees that he has read this Agreement carefully, that he has\nhad ample time and opportunity to consult with an attorney or other advisor of\nhis choosing concerning his execution of this Agreement, that he has been\nrepresented by an attorney throughout the negotiation of this Agreement, that he\nfully understands that this Agreement is final and binding, that it contains a\nrelease of potentially valuable claims, and that the only promises or\nrepresentations he has relied upon in signing this Agreement are those\nspecifically contained in this Agreement itself. Westermann also acknowledges\nand agrees that he has been offered at least twenty-one (21) days to consider\nthis Agreement before signing and that he is signing this Agreement voluntarily,\nafter consulting with his attorney, with the full intent of releasing the\nCompany from all claims.\n\n         12.      Assignment and Successors.\n\n                  12.1.      This Agreement is personal to Westermann and \nwithout the prior written consent of the Company shall not be assignable by\nWestermann otherwise than by will or the laws of descent and distribution. This\nAgreement shall inure to the benefit of and be enforceable by Westermann's legal\nrepresentatives.\n\n                  12.2.      This Agreement shall inure to the benefit of and be\nbinding upon the Company and its successors and assigns.\n\n\n                                       4\n&gt;PAGE&gt;   5\n\n\n         13.      Waiver. Failure of either party to insist, in one or more\ninstances, on performance by the other in strict accordance with the terms and\nconditions of this Agreement shall not be deemed a waiver or relinquishment of\nany right granted in this Agreement or of the future performance of any such\nterm or condition or of any other term or condition of this Agreement, unless\nsuch waiver is contained in a writing signed by the party making the waiver.\n\n         14.      Severability. If any provision or covenant, or any part\nthereof, of this Agreement should be held by any court to be invalid, illegal or\nunenforceable, either in whole or in part, such invalidity, illegality or\nunenforceability shall not affect the validity, legality or enforceability of\nthe remaining provisions or covenants, or any part thereof, of this Agreement,\nall of which shall remain in full force and effect.\n\n         15.      Governing Law. Except to the extent preempted by federal law,\nand without regard to conflict of laws principles, the laws of the State of\nTexas shall govern this Agreement in all respects, whether as to its validity,\nconstruction, capacity, performance or otherwise. Any legal action regarding\nthis Agreement or the provisions hereof shall be brought in a court of competent\njurisdiction in or including Travis County, Texas.\n\n         16.      Entire Agreement. The parties agree that this document\ntogether with the documents creating the Option and the Restricted Stock\nPurchase Agreement (collectively, the \"Equity Agreements\") constitute their\nentire Agreement regarding Westermann's employment, separation from employment\nand the mutual release of claims. This Agreement supersedes all other\nagreements, including the Equity Agreements, between Westermann and any\nReleasee, including the Company; provided however, that nothing herein is\nintended to or shall supersede or affect that certain Proprietary Information\nProtection Agreement between Westermann and the Company, which shall remain in\nfull force and effect in accordance with its terms.\n\n         17.      Notices. All notices, requests demands and other\ncommunications required or permitted hereunder shall be in writing and shall be\ndeemed to have been duly given if delivered personally or three days after\nmailing if mailed, first class, certified mail (return receipt requested),\npostage prepaid:\n\n                  To the Company:    Healtheon\/WebMD Corporation\n                                     400 The Lenox Building\n                                     3399 Peachtree Road NE\n                                     Atlanta, Georgia 30326\n                                     Attention:  General Counsel\n\n                  To Westermann:     John L. Westermann III\n                                     3844 Hunterwood\n                                     Austin, Texas 78746\n\nAny party may change the address to which notices, requests, demands and other\ncommunications shall be delivered or mailed by giving notice thereof to the\nother party in the same manner provided herein.\n\n\n\n                                       5\n\n\n&gt;PAGE&gt;   6\n\n         18.      Amendments and Modifications. This Agreement may be amended or\nmodified only by a writing signed by both parties hereto, which makes specific\nreference to this Agreement.\n\n         19.      Construction. Each party and his or its counsel have reviewed\nthis Agreement and have been provided the opportunity to revise this Agreement\nand accordingly, the normal rule of construction to the effect that any\nambiguities are to be resolved against the drafting party shall not be employed\nin the interpretation of this Agreement. Instead, the language of all parts of\nthis Agreement shall be construed as a whole and according to its fair meaning,\nand not strictly for or against either party.\n\n\n\n                         (SIGNATURES ON FOLLOWING PAGE)\n\n\n                                       6\n&gt;PAGE&gt;   7\n\n\n            IN WITNESS WHEREOF, the parties hereto have duly executed and\ndelivered this Employment Agreement as of the date first above written.\n\n                                          HEALTHEON\/WEBMD CORPORATION\n\n\n                                          By:   \/s\/ JEFFREY ARNOLD\n                                             -----------------------------------\n                                                         Jeffrey Arnold\n                                                         Chief Executive Officer\n\n\n\n                                   EXECUTIVE:\n\n            I have read this Employment Agreement and release of all claims. I\nunderstand all of its terms and I agree to those terms.\n\n\n\n                                               \/s\/ JOHN L. WESTERMANN\n                                             -----------------------------------\n                                             John L. Westermann, III\n\n\n\n                                       7\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9303],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9539,9544],"class_list":["post-39219","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-webmd-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39219","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39219"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39219"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39219"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39219"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}